Hill Heat

In the middle of September 2007, Rick Boucher (D-W.Va.), chair of the the the Energy and Air Quality Subcommittee of John Dingell’s Energy and Commerce Committee, announced he would be releasing a series of white papers “over the next six weeks” on issues related to the development of climate change legislation. The third such paper, Appropriate Roles for Different Levels of Government, has now been released.

• Oct. 3, 2007: Scope of a Cap-and-Trade Program
• Jan. 31, 2008: Competitiveness Concerns/Engaging Developing Countries

After reviewing state, local and regional initiatives to combat global warming emissions, in its discussion of the possible costs of local regulations in addition to a federal cap-and-trade system, the 25-page white paper bores in on the question of federal preemption. This issue was highlighted in December by EPA administrator Stephen Johnson’s denial of California’s waiver request under the Clean Air Act to regulate tailpipe greenhouse gas emissions. Johnson’s decision spurred a multi-state lawsuit, an investigation by House Oversight chairman Henry Waxman (D-Calif.), and contentious Senate hearings.

The paper follows statements made previously by committee chairman John Dingell (D-Mich.) supporting Johnson’s stated justification for denying the waiver:

One key factor that distinguishes climate change from other pollution problems our country has tackled is that local greenhouse gas emissions do not cause local environmental or health problems, except to the extent that the emissions contribute to global atmospheric concentrations. This characteristic of greenhouse gases stands in contrast to most pollution problems, where emissions adversely affect people locally where the emissions occur. The global nature of climate change takes away (or at least greatly minimizes) one of the primary reasons many national environmental programs have provisions preserving State authority to adopt and enforce environmental programs that are more stringent than Federal programs: States have a responsibility to protect their own citizens.

In its concluding remarks, the paper summarizes the internal committee battle:

As the debate over whether the Federal Government should preempt California’s greenhouse gas motor vehicle standards has shown, Committee Members balance these various factors in a way that can lead to different conclusions that will need to be worked out through the legislative process. Chairman Dingell has made it very clear that he believes that motor vehicle greenhouse gas standards should be set by the Federal Government, not by State governments: greenhouse gases are global (not local) pollutants, multiple programs would be an undue burden on interstate commerce and would waste societal and governmental resources without reducing national emissions, and the competing interests of different States should be resolved at the Federal level. Other Committee Members have reached the opposite conclusion given the severity of the climate change problem, the need to push technological development, and the benefits of having States act as laboratories.

From the AP:

General Motors Corp. CEO Rick Wagoner urged a group of auto dealers Saturday to lobby against individual states trying to set their own limits on greenhouse gas emissions.

Wagoner, speaking to the National Automobile Dealers Association convention in San Francisco, said several states want to go beyond requirements passed by Congress.

If that happens and automakers must focus on state regulations, they won’t be able to focus as much on alternative fuel vehicles to reduce oil consumption and pollution, he said.

“We’re not going to be able to accomplish everything that we otherwise could,” Wagoner said. . .

“We need to work together to educate policymakers at the state and local levels on the importance of tough but national standards,” Wagoner told the dealers group.

He also said dealers and automakers should push for infrastructure to handle new technologies including hydrogen and ethanol fueling stations and charging stations for electric vehicles.

GM is the official vehicle provider for the Democratic National Convention, a decision highlighted as part of the DNC’s “green” mission:

“GM’s leadership in this area will play a critical role in our event – helping us make this the ‘greenest’ political convention our country has ever seen, while providing our guests with yet another convenient option for getting around Denver.”

– Leah Daughtry, DNC CEO

Once we talked to them about how we really wanted to push the environmental piece, they were 100 percent on board.

– Cameron Moody, the DNCC’s director of operations

This will be a great showcase to change perceptions about GM and to show we are taking leadership.

– GM spokesman Greg Martin

In a move that has been discussed for some time on both sides of Capitol Hill, Rep. Henry Waxman (D-CA) has grown tired of waiting around for EPA to fully cooperate with his investigation of California’s EPA waiver denial:

Escalating the fight over the decision, Rep. Henry A. Waxman (D-Beverly Hills), chairman of the House Oversight and Government Reform Committee, directed the EPA to provide uncensored copies of its staff recommendation to agency Administrator Stephen L. Johnson before he rejected California’s request to enact tailpipe emission standards stricter than the federal government’s. The EPA was told to respond by noon Tuesday.

“The committee is simply trying to understand if the decision to reject California’s plan was made on the merits, so I’m especially disappointed that EPA is refusing to provide the relevant documents voluntarily,” Waxman said. “But we will to try to get to the bottom of this.”

[…]

The EPA has also turned over some documents, but they were heavily redacted, so much so that some pages were largely blank. The agency has resisted turning over nonredacted documents to Congress, contending that they are protected under attorney-client privilege. California and more than a dozen other states that want to enact similar laws have sued to overturn Johnson’s decision.

The agency has also argued that releasing the documents could have a “chilling effect” on candid discussions within the EPA. Vice President Dick Cheney also cited the need to keep internal deliberations private in fighting congressional efforts to force him to disclose details of private meetings he held as the White House drafted its energy policy, an initiative sparked in part by another California issue – the 2000-01 electricity crisis.

Waxman’s deadline isn’t the only one EPA must meet this week. Senator Barbara Boxer (D-CA) has given it until Friday to turn over documents related to potential White House involvement, and she has now spearheaded a call for the Government Accountability Office to look into factors influencing the waiver decision.

Johnson’s spokesman stood by the decision and said he wouldn’t be changing his mind anytime soon, but that hardly seems to be the California delegation’s point here. They’re building a careful case for congressional intervention via Senator Boxer’s legislative remedy overturning the decision, and both the slow pace of legal proceedings (which California is trying to hasten)and EPA’s foot-dragging play right into their hands.

Last week, California’s lawsuit to overturn EPA’s waiver decision continued to gain support despite the automobile industry’s best efforts to prevent more states from stepping up to the plate on global warming emissions. While this preemptive lobbying campaign did temporarily stop a California legislative proposal to limit emissions through a “feebate” program, it has failed to convince states to hold back on supporting the Pavley clean cars program. Late Friday, the Florida Department of Environmental Protection and the state of Iowa joined the lawsuit, filing a 24-page motion to intervene in the case:

The motion presented by Iowa and Florida on Friday stated that the two states “recognize that motor vehicles are one of the most significant sources of greenhouse gases that cause global warming. Global warming is already seriously and negatively impacting the public health, economies, and environments of (the two states), and its effects are expected to worsen in the absence of effective abatement prompted by immediate governmental action.”

The Iowa Office of Energy Independence recommended in December that Iowa join with other states considering the adoption of California’s vehicle emissions standards.

Warming Law has written previously just how important it is that states that haven’t yet moved to adopt the California standards are getting involved here, and its likewise critical that states in the process of enacting regulations – such as Florida and Arizona—are still moving forward in every way that they can. It does, however, continue to bear highlighting that Florida’s environmental regulators had to bring its case rather than the state itself, a likely product of state AG Bill McCollum’s well-documented climate-change skepticism.

At today’s Committee on Environment and Public Works hearing on the EPA’s decision to deny the California waiver, EPA administrator Stephen L. Johnson defended his decision under intense questioning from the Democratic members of the EPW (the only minority member to attend was Sen. Inhofe).

Johnson repeatedly argued that because greenhouse gases are a global problem, California did not have a “unique” or “exclusive” interest; two terms which have been found to be distinct from the “compelling and extraordinary” criteria the Clean Air Act the waiver petition must meet. As NRDC advisor Fran Pavley noted in the January 10 field briefing:

A 1984 waiver determination by then-EPA-Administrator William Ruckelshaus deeming that California’s plight need not be “unique” in order to be “compelling and extraordinary.”

The senators pressed Johnson hard on the long-delayed endangerment finding, a timeline for which he would not discuss. Under repeated questioning, he refused to concede that global warming represents a threat to public health, even when confronted with the CDC testimony from last October’s hearing. He agreed only that it is a “serious issue.”

Sen. Whitehouse (D-R.I.), displaying his prosecutorial background, leading Johnson into a discussion of how he overruled his staff, trying to parse Johnson’s description of a presentation of a “range of options” with the existence, if any, of a “consolidated recommendation.” In the end Johnson argued that the two terms could be synonymous.

Interestingly, Sen. Carper (D-Del.) favorably discussed Sen. Levin’s colloquy that implied that the Energy Act CAFE standards restrict EPA action on emissions regulation.

Sen. Barbara Boxer continues the investigation.

Witnesses
Panel I (Warming Law live-blog)

• Stephen L. Johnson, Administrator, Environmental Protection Agency

Panel II (Warming Law live-blog)

• Martin O’Malley, Governor of Maryland
• Jim Douglas, Governor of Vermont
• Edward G. Rendell, Governor of Pennsylvania
• Mike Cox, Attorney General, State of Michigan
• Doug Haaland, Director of Member Services, Assembly Republican Caucus, State of California

Panel III (Warming Law live-blog)

• David D. Doniger, Policy Director, Climate Center, Natural Resources Defense Counci
• Jeffrey R. Holmstead, Partner, Bracewell & Giuliani

24/01/2008 at 10:00AM

In a Detroit News piece entitled Dingell tours show; says state-by-state emissions rules would doom carmakers, David Shepardson writes that Dingell fully supported last month’s decision by the EPA to deny the California waiver to regulate tailpipe greenhouse gas emissions.

Dingell, D-Dearborn, chairman of the House Energy and Commerce Committee, said if California got the waiver it could impose conflicting federal and state standards. The California standards could be make automobile production “so expensive that people won’t be able to buy and second of all get so difficult that the companies won’t be able to produce anyhow.”

Dingell said the California system could lead to 50 different standards. He said the EPA decision “makes good sense.”

As has been previously discussed on Hill Heat, the specter of 50 different standards is simply false. Under the Clean Air Act only California has the authority to get waivers from national standards. Other states can then follow California or the federal standards. At most there can be two different standards.

Dingell plans to introduce a climate change bill in his committee “as fast as we can” but wants to exclude the auto industry, arguing that the CAFE standards in the 2007 energy bill are sufficient regulation: “We’ve had everybody else get practically a free ride and auto industry has to come up with a 40 percent increase in fuel efficiency,” Dingell said. “We’re going to try to see that the pain is shared equally all around.”

Update: Dingell has issued a clarification of his remarks, stating that he considers CAFE standards to be a “carbon constraint” and that the CAFE standard increase “tightens the cap on automobiles by 40 percent by 2020.” Any carbon cap would entail “further reductions” that would be have to matched by “comparable contributions” by other industries.

Shepardson also reports on an interview with Margo Oge, director of the EPA’s office of transportation and air quality. She didn’t expect the agency to issue a formal written denial “until next month at the earliest.” The EPA may be trying to argue that its the EPA press release announcing the denial isn’t actually grounds for a suit to overturn the decision. She also said that the EPA “completed its draft of its own new regulations to reduce greenhouse gas emissions” but didn’t provide details.

California Democrat and House Oversight Committee chair Henry Waxman has turned up the heat in his investigation into EPA’s denial of the California waiver request to regulate tailpipe greenhouse gases, calling for depositions of numerous EPA officials and criticizing the delay in document production. He expects a mutual schedule for production and interviews to be worked out by January 16. Waxman noted that althought EPA counsel had accompanied officials in previous interviews, because EPA administrator Stephen Johnson’s “own conduct is being examined, this accommodation would not be appropriate.”

When he opened the investigation in December, Waxman set deadlines of January 10th, 17th, and 23rd for various EPA offices to deliver responsive documents.

The EPA’s associate administrator Christopher Bliley sent a letter on January 4 saying the EPA would try to deliver documents by January 11, a day after Waxman had requested. On the 11th he wrote that the first documents might be ready by January 18.

Waxman’s full response is after the jump.

(Cross-posted from Warming Law)

Anticipation has been high that Senator Barbara Boxer (D-CA) would use her platform running the Senate Environment and Public Works Commitee to pressure the EPA regarding its denial of California’s waiver application, and a committee field hearing yesterday did not disappoint. Responding to Administrator Stephen Johnson’s no-show and failure to provide documentation of how he reached his decision, Boxer threatened to use the committee’s subpoena power and generally pledged to step up congressional pressure:

“This outrageous decision . . . is completely contrary to the law and science,” Boxer said in a briefing with state officials at Los Angeles City Hall. She held up an empty cardboard box as a symbol of the Environmental Protection Agency’s refusal so far to provide the hefty technical and legal backup that normally accompanies air pollution waiver decisions and are usually published in the Federal Register.

[…]

Johnson is scheduled to testify before the Senate committee in Washington on Jan. 24. An EPA spokesman said, “The official decision documents are being prepared, and they will be released soon.”

California Attorney General Jerry Brown praised Boxer’s subpoena threat, at one point calling Johnson a “stooge in a really pathetic drama that hopefully will not play out much longer.” Brown used his written testimony to document the state’s legal case against the waiver decision, and specifically honed in on EPA’s central assertion that the waiver request did not meet “compelling and extraordinary” conditions due to global warming’s wide-ranging impact.

In addition to reiterating this logic’s departure from the text of the law and the Supreme Court’s rejection of a similar argument in Mass. v. EPA, various testimony directly cited the way in which past waiver decisions have interpreted the law. Former Assembleywoman Fran Pavley—who authored the clean cars law—pointed to a 1984 waiver determination by then-EPA-Administrator William Ruckelshaus deeming that California’s plight need not be “unique” in order to be “compelling and extraordinary.” Brown, meanwhile, cited a 1975 waiver determination’s assessment of the Clean Air Act, which noted that:

[I]n the light of their unusually detailed and explicit legislative history. . .Congress meant to ensure by the language it adopted that the Federal government would not second-guess the wisdom of state policy here. . . . Sponsors of the language eventually adopted referred repeatedly to their intent to make sure that no “Federal bureaucrat” would be able to tell the people of California what auto emission standards were good for them, as long as they were stricter than Federal standards.

The Field Briefing will take place Thursday, January 10 at 10:00am PST in the City Council Chamber at the Los Angeles City Hall, 200 North Spring St. in Los Angeles.

Environmental Protection Agency Administrator Stephen Johnson has been invited to appear at the field briefing to answer Senators’ questions about the EPA’s denial of California’s request for a waiver to regulate greenhouse gas pollution from motor vehicles.

Witnesses

• Edmund G. Brown Jr., Attorney General of California
• Mary Nichols, Chairman of the California Air Resources Board
• Fran Pavley, Senior Advisor, Natural Resources Defense Council
• Carl Pope, Executive Director, Sierra Club

10/01/2008 at 01:00PM